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SCOTTISH_Shaw_Court_of_Session

Page: 356↓

E. of Dunmore

v.

M'Inturner No. 110.

Court of Session

2d Division F.

Jan. 28 1835

Lds. Moncreiff and Cockburn, Lord Justice-Clerk, Lord Glenlee, Lord Medwyn, Lord Meadowbank

Earl of Dunmore, Pursuer.— Murray— Tait. Colin M'Inturner, Defender.— D. F. Hope— Marshall.

Subject_Arbitration.—

Circumstances in which the award of an oversman in a submission set aside, as pronounced without giving one of the parties an opportunity of being heard.

The pursuer, the Earl of Dunmore, and the defender, M'lnturner, in 1821, entered into a submission, whereby they “referred all demands, claims, disputes, questions, and differences depending and subsisting between them relative to the marches between the high grounds of Colimeanoch and Upper Craigcole belonging to the said Earl of Dunmore, and those of Nether Craigcole belonging to the said Colin M'lnturner, to the amicable decision, final sentence, and decreet-arbitral to be given forth and pronounced by Mr Archibald Currie, tacksman of Garvie, and Robert Harkness, Esq. of Inneshenruisk,”—(the former having been named by Lord Dunmore, and the latter by M'lnturner)—“arbiters, mutually chosen by the said parties, or by any oversman to be by them appointed, in case of difference of opinion.” The arbiters having accepted the submission, nominated Mr Yuill, writer in Greenock, and agent for M'lnturner, to be clerk thereto, though this was said to have been with consent of Lord Dunmore's agent, and it was not alleged that he acted as agent for M'lnturner in the submission. After some proceedings on. the part of the arbiters for settling the disputed marches, a minute of devolution was executed by them, of date 5th August, 1822, while Currie was on his deathbed, upon one Fletcher as oversman—the minute proceeding on the narrative that the arbiters had differed in opinion. Currie died shortly afterwards; and on the devolution upon Fletcher becoming known to Lord Dunmore's agent, he presented to the Sheriff of Argyle-shire, within which county the lands lay, and the arbiter and oversman resided, a petition, praying for an interdict against Fletcher proceeding to pronounce any award, on the ground that there was no legal devolution—the arbiters not. having, as was alleged, truly differed in opinion, and Currie having been induced to sign the minute of devolution, when, in a state of mental imbecility, on his deathbed. Interim interdict was granted and served on Fletcher, and the petition was called in Court, but: no further procedure took place in it—the interim interdict, however, never having been recalled. On the 17th September, 1824, Fletcher, accompanied by Harkness, but without any previous intimation to Lord Dunmore or his agent, came to the grounds to inspect the marches. On the morning of that day, Fletcher had seen Harvie, Lord Dunmore's overseer, and had intimated to him his intention to inspect the marches. Harvie, however, had never acted in the submission which had been conducted on Lord Dunmore's part by his Lordship's agent at Inveraray; and instead of attending at the perambulation, he immediately set off for Inveraray (which is at some distance from the lands), to acquaint Lord Dunmore's agent with what was going on. In the meanwhile, Fletcher, alongst with Harkness and M'Inturner himself, but without any one present on behalf of Lord Dunmore, perambulated the marches; and having thereafter adjourned to M'Inturner's house, Yuill the clerk drew out a minute of award, running in name both of Fletcher as oversman, and Harkness as arbiter, fixing the boundaries in a particular way, and assigning to M'Inturner a portion of Lord Dunmore's lands, for which he was to pay the Earl the sum of £35. This minute was signed by both Harkness and Fletcher, and was intimated next day to Lord Dunmore's agent, who immediately wrote to Fletcher, protesting against his signing any decreet-arbitral. No notice was taken of this communication, and no further intimation made by Fletcher, who, of date 26th November, subscribed a formal decree, exactly in terms of the minute above mentioned, except that it proceeded in the name of Fletcher alone as oversman, and without Harkness. Of this decree Lord Dunmore, in January thereafter, instituted a reduction, in which, in addition to certain averments alluded to in the note of the Lord Ordinary, quoted below, but unnecessary to be specially adverted to here, he rested chiefly, 1.On the alleged invalidity of a prorogation of the submission; and, 2. On the award of the oversman having been pronounced by him in face of the Sheriff's interdict, and without hearing his Lordship, after an inspection conducted in presence of the other party alone, and without any due intimation to his Lordship's agent.

The first of these grounds of reduction was disposed of by a judgment, mentioned ante VII. 595, whereby the prorogation was sustained; and, in regard to the others, Lord Moncrieff, Ordinary, pronounced this interlocutor, adding the subjoined note. ^*

_________________ Footnote _________________

* “The Lord Ordinary thinks that there is relevancy in the pursuer's averments in various points:—

“1. The submission is expressly limited to all existing disputes ‘relative to the marches between the high grounds of Colimeanoch and Upper Craigcole, belonging to the said Earl of Dunmore, and those of Nether Craigcole, belonging to the said Colin M'Inturner.’ The averment is pointed, that the decree in the material point is a straighting of marches, not between the high grounds of the one party and the other, but between the low grounds of Lord Dunmore and some other lands of M'Inturner. The answer to this may possibly amount to a denial of the fact, though it is but faint (answer to article 5th of original Condescendence). But if the pursuer's averment is true, the decree is clearly ultra vires; and nothing but an express consent, equivalent to a new submission (which is not averred) would support the decree.

“2.The devolution was made in circumstances which, if true as averred, demand enquiry. It is not stated that the propriety of taking the particular piece of ground in question, or the value of it, had been at all considered at the first inspection. To obtain ex parte, and without the knowledge or presence of any one for the pursuer, a devolution signed by a man averred to have been on deathbed, to the effect of raising a new matter of discussion before an oversman, is a proceeding so very questionable as at least to call for investigation.

“3. The whole proceeding at the second inspection, even as admitted, is inconsistent with the fair course of an arbitration. Without any previous notice to the known agent of the pursuer, who had charge of the business, and had attended before, the whole affair is transacted by the defender's agent, the arbiter named by him, and the oversman, and the attempt to get a tenant of the pursuer, who was known to have no charge, to attend on a moment's notice, only makes the matter worse.

“4.The notes of the intended decree bear to be for a decree by Harkness, the original and surviving arbiter, and Fletcher the oversman, and the decree itself is in the same terms. The Lord Ordinary holds this to have been incompetent. It is said to have been a practice for the original arbiters to concur with an oversman in a decree-arbitral. The Lord Ordinary cannot approve of the practice. But when was it held to be according to justice for one arbiter named by one party, and evidently acting for his interest, the other arbiter being dead, to become a party to a decree by an oversman appointed in consequence of alleged difference of opinion between the two original arbiters? The Lord Ordinary thinks it pessiml exempll.

“5.The averment of an express representation of Lord Dunmore's consent or willingness to give up the low ground in question, such averment being false, is manifestly relevant against M'Inturner; and it seems to be no sufficient answer that the oversman knew before signing the decree that Lord Dunmore objected to it, because the only objection to which the oversman's attention was drawn, was an objection to his power to act at all.

“6.The interdict by the Sheriff would be incompetent, if there was a valid devolution, and the matter referred to were clearly within the arbitration. But that and the letter of protestation (at last produced after much difficulty) take off all idea of consent or homologation, if the proceedings were otherwise incompetent or objectionable.”

“Finds, That the pursuer has condescended on facts relevant to reduce the decreet-arbitral called for and produced; but in respect that, though many of the facts relied on by the pursuer are either admitted or proved, scripto, there are other material averments, on which the parlies are at variance, appoints the cause to be enrolled, in order that the pursuer may state whether he demands a proof of the disputed facts averred by him, or is content to hold the case concluded, and allow it to be advised on the proof and admissions already in process; and further, in order that, in case a proof is to take place, it may be determined in what manner such proof should be proceeded in.”

Lord Dunmore thereupon put in a minute renouncing further probation, and consenting to allow the cause to be advised on the proof and admissions already in process, which established the facts above-narrated, The Lord Ordinary on this ordered Cases, with a view to their being reported to the Court, adding the subjoined note. ^*

The Cases having been given in, were accordingly reported by Lord Cockburn, before whom the cause had now come.

Pleaded for Lord Dunmore—

According to the principles laid down in the House of Lords in the case of Sharp v. Bickerdyke, ¹ and followed in this Court in the case of Heggie and Co. v. Stark and Selkrig, ² it is essentially necessary to the validity of a decree-arbitral, that the fundamental rule of justice be complied with, that both parties shall have an equal opportunity of being fairly heard. Here, however, the oversman, without intimation to any party authorized to attend to Lord Dunmore's interest, and in absence of any one on his behalf, but with the exclusive attendance of the other party, and of the arbiter who had been named by him, pronounced the award under reduction, which is consequently void; and which was besides inept, as in violation of the Sheriff's interdict.

Pleaded for M'Inturner—

The notification to Lord Dunmore's overseer was, in a matter of this kind where no legal argument could be required, perfectly sufficient, and if he did not choose to attend, the blame lay with himself; but his absence could not affect the validity of the decree, full opportunity having been given him to look after his employer's interests; and further, two months having elapsed between the communication of the minute and the signing

_________________ Footnote _________________

* “The Lord Ordinary, in thus ordering Cases for the Court, will only observe, that having been intimately acquainted with the cause throughout, and having repeatedly heard the parties at great length, and at the last advising having minutely examined the statements in the record, and the documents in process, he would have been prepared to decide it if time had permitted him to do it in a satisfactory manner before being removed to a different place in the Court. But he thinks it is his duty to say in general, that upon the facts admitted and proved scripto, his impression is very decided, that sufficient grounds have been established for reducing the decree-arbitral. He refers to his former Note.

“But it is proper to mention, that the parties were not heard after the Minute by the pursuer was given in, which is the reason why Cases are ordered.”

¹. Feb. 24,1815 (3 Dow 102).

² Feb. 1, 1825 (ante III. 488).

of the formal decree, without any representation being offered. Then, as to the interdict, it had been allowed to fall by no steps having been taken in it for two years; and at any rate, the Sheriff has no power to stay the proceedings of arbiters, or an oversman, under a submission.

Lord Justice-Clerk.—In judging of this case, which is a very important one in the law of decreets-arbitral, I must lay aside many things alleged and hold to be relevant, but of which probation has been renounced. I therefore lay aside all allegation that there was no difference of opinion between the arbiters, and I hold that there was a regular devolution. I also lay aside all idea of the oversman being improperly wrought upon, or as to the conduct of the clerk, but there remain facts admitted, or proven, of essential importance. It appears that the oversman, accompanied by the surviving arbiter and M'Inturner, proceeded to inspect the marches; and further, although notice was given to Harvie, who, I will assume, was an overseer—he was not an agent, or who had taken any part as such in this submission, and he did not attend this inspection. Then after the inspection, and in absence of any one for Lord Dunmore, this minute, afterwards reduced into a decree, was drawn out in the name, both of Harkness the arbiter, and Fletcher the oversman. Further, though the minute was sent to the agent to whom notice of the inspection should have been given, there is this essential want in the proceedings, that Mr Fletcher ought to have directed the clerk to intimate to Lord Dunmore, that, if he did not give in objections by a certain day, the decree would be extended and executed, notwithstanding the protest. Without notice, however, a formal decree was made out in Fletcher's own name, but embodying the very words of the minute which had been made up behind the back of Lord Dunmore, or any one on his behalf. Then in these circumstances, a decree so pronounced, with the assistance of the other party himself, and also of the arbiter, whom, we must hold, differed from Currie, and without an opportunity given to Lord Dunmore to he heard, was, as I conceive, contrary to the principles of fair justice between man and man; and I agree with Lord Moncreiff, that it would be pessimi exempli if we gave our sanction to proceedings so contrary to the plain principles of justice. Therefore, I am for setting aside this decree.

Lord Glenlee.—I am of the same opinion. I have no doubt about it.

Lord Medwyn.—I also agree, and on exactly the same grounds; and I further think, that the interdict was a bar to the award. It did not fall, as the petition had been called in Court; and, whether right or wrong, it was a subsisting interdict till recalled.

Lord Meadowbank concurred with Lord Medwyn.

The Court accordingly reduced and decerned, in terms of the libel,

Solicitors: Tait and Young, W. S.— Jas. Stuart, S. S. C.—Agents.

SS 13 SS 356 1835